Exactech Knee and Hip Implant Lawsuit Bellwether Plan Proposed for MDL and Florida State Court Litigation

A proposed bellwether plan has been submitted that calls for a group of Exactech knee implant lawsuits and hip implant lawsuits to be prepared for early trial dates in the federal multidistrict litigation (MDL) and Florida state court, which may help gauge how juries are likely to respond to certain evidence and testimony that will be presented throughout hundreds of claims being pursued by individuals nationwide.

Exactech currently faces at least 1,131 product liability lawsuits, each raising similar allegations that “out-of-specification” vacuum sealed bags were used with a plastic tibial insert component in recent years, allowing oxygen to reach the knee, hip and ankle implants long before they were placed in the body. This has been shown to increase the risk of degradation and premature failure, often resulting in the need for additional surgery to remove the component only a few years later.

The litigation emerged after an Exactech recall was issued in February 2022, impacting more than than 140,000 Optetrak, Optetrak Logic and Truliant knee replacement systems implanted in patients since 2004, as well as 1,500 components used in Exactech Vantage ankle replacements. Similar packaging problems have also impacted Exactech Novation and Acumatch hip implants since 2008, which were recalled in June 2021, and the Exactech hip recall was expanded in August 2022, to add another 40,000 joint replacements that may fail prematurely.

Given common questions of fact and law raised in the complaints filed throughout the federal court system, consolidated pretrial proceedings have been established before U.S. District Judge Nicholas G. Garaufis in the Eastern District of New York, for coordinated discovery and pretrial proceedings.

According to a joint status report (PDF) submitted by the parties on August 11, there are currently at least 822 claims pending in the federal Exactech MDL, of which 665 involve problems with knee implants, 146 involve Exactech hip lawsuits, and only 10 involve ankle replacement products.

However, there are another 272 Exactech lawsuits pending in Florida state courts, where the manufacturer’s U.S. headquarters are located. Of the Florida state court litigation, there are 191 Exactech knee lawsuits, 77 hip failure lawsuits, and four ankle failure lawsuits. There are also another 14 cases filed in Illinois and 23 claims scattered across various other state courts nationwide, according to the status update.

Exactech Knee and Hip Lawsuit Bellwether Plan

The parties submitted the updated information about the numbers of claims pending nationwide ahead of a status conference later this month before Judge Garaufis, which is scheduled for August 22.

As part of the management of the litigation, Judge Garaufis has indicated he will schedule a small number of representative claims for early test trials, to help gauge how juries are likely to respond to certain evidence and testimony that will be repeated throughout the claims. Earlier this year, he called for parties to propose an Exactech bellwether plan for the selection and preparation of those cases for the first federal trials.

The parties submitted their proposal (PDF) on July 28, calling for close coordination with the Florida state court judge presiding over that litigation. As presented, the parties called for the first two Exactech hip implant lawsuits to be held in Florida state court, with the first two Exactech knee implant lawsuits to be held in federal court.

“In an effort to facilitate coordination of discovery and even more ambitiously, of a coordinated bellwether plan, the parties were able to negotiate across the coordinated jurisdictions and reach a novel and innovative joint bellwether plan between the jurisdictions,” the joint proposal states. “Lead counsel for the parties in the MDL and in Florida agree that the plan is sensible and efficient by sparing all parties the extreme costs of full-fledged work up and preparation for trial of a large number of cases, concentrating the bellwether pools by product and addressing the complex venue and choice of law issues that come with national litigation such as this.”

The joint proposal notes that the Florida state court cases have a much higher proportion of Exactech hip lawsuits, when compared to the federal MDL. In addition, some of those hip lawsuits filed at the Florida state level have already been through much of the process to prepare them to go before a jury. The federal MDL, by comparison, has only a small fraction of cases that are not Exactech knee lawsuits.

For the federal bellwether pool, the parties call for two groups of cases to be selected, one involving 12 cases chosen from around the country, and another consisting of 12 cases that were originally filed in the Eastern District of New York, where Judge Garaufis can preside over trials without venue waivers.

Those two pools would later be reduced down to four cases each, including a total of eight cases that will be eligible for the first trials. Each side would then recommend two Exactech lawsuits from the National Pool and two from the New York Pool for the first bellwether trials, and Judge Garaufis would then select two cases from each pool to go before juries in the federal court system.

For the Florida state court litigation, the proposal calls for a separate group of 12 cases to be selected, with each side choosing two cases, and the remaining eight cases being selected randomly by the Court. After discovery, each side would have the ability to strike four cases from the pool, and the state court judge would select two cases for trial from the remaining four Florida Pool selections.

Judge Donna Keim of the Eighth Judicial Circuit is currently overseeing the Exactech lawsuits in Florida state court, and has previously indicated that the first case will go to trial in the state in October 2024. However, there has not yet been a trial date set in the federal MDL.

Although the outcomes of any bellwether trials in the federal MDL or Florida state court will have no binding impact on other lawsuits in the litigation, they will be closely watched and may have a large impact on any Exactech recall settlements the manufacturer offers to avoid the need for hundreds of individual trials to be scheduled in the coming years.